State v. Strong , 2014 Ohio 4209 ( 2014 )

[Cite as State v. Strong, 2014-Ohio-4209.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100766
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
DANA STRONG
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573499-A
BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 25, 2014
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James M. Price
Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
David L. Grant
Grant & O’Malley, Co., L.P.A.
1370 Ontario Street
Standard Building # 1350
Cleveland, Ohio 44113
Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103
EILEEN T. GALLAGHER, J.:
{¶1} Plaintiff-appellant, the state of Ohio (“the state”), appeals from the trial
court’s order dismissing the indictment against defendant-appellee, Dana Strong
(“Strong”), with prejudice. Finding merit to the appeal, we reverse and remand.
{¶2} In April 2013, Strong was re-indicted on one count of robbery in violation of
R.C. 2911.02(A)(3), in case CR-13-573499-A. This case had twice previously been
indicted and dismissed without prejudice. Respectively CR-07-493141-A and
CR-09-526460-A. The first dismissal entry is silent as to the reason, whereas the second
indictment was dismissed without prejudice due to the state’s witness failing to appear for
trial.
{¶3} In the instant case, on November 13, 2013, the trial court addressed Strong’s
pending motion to dismiss for purposes of speedy trial on the record. The court calculated
the number of days Strong had been in jail pending the outcome of the case. At the
conclusion of the hearing, the court denied Strong’s motion to dismiss, finding that his
right to a speedy trial had not been violated.
{¶4} On December 11, 2013, the case was called for trial, however, the state’s key
witness failed to appear. Strong made an oral motion to dismiss, requesting that the
dismissal be made with prejudice. The state objected. Strong argued the case should be
dismissed with prejudice because it had been indicted and dismissed twice before due to
the state’s witness failing to appear for trial and his due process rights had been violated.
{¶5} The trial court granted Strong’s oral motion to dismiss, dismissing the case
with prejudice. It is from this dismissal that the state now appeals, raising two
assignments of error. See R.C. 2945.67(A) (which provides that a prosecuting attorney
may appeal as a matter of right any decision of a trial court in a criminal case that grants a
motion to dismiss all or part of an indictment). We find the first assignment of error
dispositive of the appeal.
Dismissal with Prejudice
{¶6} In its first assignment of error, the state argues the trial court erred by
dismissing the indictment against Strong with prejudice absent a finding that Strong was
denied a constitutional or statutory right.
{¶7} A trial court’s dismissal of an indictment is reviewed for an abuse of
discretion. State v. Walton, 8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 4, citing
State v. Tankers, 8th Dist. Cuyahoga Nos. 72398 and 72399, 1998 Ohio App. LEXIS
1724 (Apr. 23, 1998). An abuse of discretion implies a decision that either is without a
reasonable basis or is clearly wrong. Id., citing Angelkovski v. Buckeye Potato Chips
Co., 11 Ohio App. 3d 159, 463 N.E.2d 1280 (10th Dist.1983).
{¶8} A trial court has the inherent right to dismiss an indictment, pursuant to
Crim.R. 48(B), which provides:
If the court over objection of the state dismisses an indictment, information,
or complaint, it shall state on the record its findings of fact and reasons for
the dismissal.
{¶9} Although Crim.R. 48 allows a trial court to dismiss an indictment, the
dismissal may only be made with prejudice where the court finds that “the defendant has
been denied a constitutional right or statutory right, the violation of which would, in
itself, bar prosecution.” State v. Peters, 8th Dist. Cuyahoga No. 92791, 2009-Ohio-5836,
¶ 12, citing Fairview Park v. Fleming, 8th Dist. Cuyahoga Nos. 77323 and 77324, 2000
Ohio App. LEXIS 5714 (Dec. 7, 2000); State v. Tate, 8th Dist. Cuyahoga Nos. 93384,
93385, and 93386, 2010-Ohio-3312, ¶ 32; State v. Dixon, 14 Ohio App. 3d 396, 471
N.E.2d 864 (8th Dist.1984). See also State v. Johnson, 8th Dist. Cuyahoga No. 87348,
2006-Ohio-4772, ¶ 4; State v. Lababidi, 8th Dist. Cuyahoga No. 89460, 2008-Ohio-574, ¶
7; State v. Walton, 8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 5.
{¶10} In the instant case, defense counsel stated at the hearing:
Your Honor, at this time, we would make a motion to dismiss. We would
also ask the Court to consider dismissing this matter with prejudice. This
is, at least, the third time this case, in predecessor case numbers, has been
dismissed due to the failure of the State to produce the witness. My client
shouldn’t have to have this hanging over his head anymore.
When asked by the court under what authority the case could be dismissed with prejudice,
defense counsel responded by stating, “I think it’s a violation of my client’s rights to due
process.”
{¶11} The trial court made its ruling on the oral motion, stating:
I’m going to dismiss it with prejudice because he has served over four
hundred days in county jail on this matter. I understand, Mr. Colan [the
state’s attorney], your argument about some of the delay was caused by him.
But, repeatedly, your witness, Mr. Davis, has failed to appear.
Having thoroughly reviewed the transcript, we find the trial court’s reasoning to be
unclear and inadequate. The trial court’s reference to time served and to the failure of
the state’s witness to appear leave this court to speculate as to what violation, if any, the
trial court believed had occurred, i.e. speedy trial, right to trial, right to cross-examination,
due process, etc.
{¶12} Regardless, in failing to set forth a straightforward constitutional or statutory
violation, as well as in failing to provide clear reasoning to support its decision, we find
the trial court did not meet the requirements of Crim.R. 48, and thus abused its discretion
in dismissing the case with prejudice.
{¶13} Accordingly, the first assignment of error is sustained. The trial court’s
order dismissing the case with prejudice is hereby reversed and vacated. The judgment is
remanded to the trial court to enter a dismissal without prejudice. The first assignment of
error is dispositive. We find the second assignment of error is therefore moot and shall
not be addressed.1
{¶14} Judgment reversed and remanded.
1 In its second assignment of error, the state argues the trial court erred in
ordering a state’s witness appear for a final pretrial.
It is ordered that appellee and appellant share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
PATRICIA ANN BLACKMON, J., DISSENTS WITH SEPARATE OPINION
PATRICIA ANN BLACKMON, J., DISSENTING:
{¶15} I would affirm the trial court’s dismissal with prejudice. It is clear that the
trial court did not find the defendant’s statutory right was violated, since it denied
defendant’s speedy trial violation. Nonetheless, defendant does have a constitutional
right to confront witnesses against him. In this case, the primary witness was the accuser
who the state failed to produce three times. In this situation, the trial court correctly
exercised its discretion to dismiss the case with prejudice.